Ukrainian News | Jun. 09-15, 2004 | Marco Levytsky
Front Page News

Appeals court deals major blow to D & D

Rules government must live up to its own guidelines of providing evidence of individual crimes

A federal appeals court has dealt what may prove to be a fatal blow to the government policy of Denaturalization and Deportation of Canadians of East European origin under the guise of removing so-called Nazi war criminals from Canada, as it is currently being practiced.

In a unanimous decision issued May 31, Justice Robert Décary, with the concurrence of Justices J. Edgar Sexton and B. Malone the Federal Appeal Court decided to reinstate the citizenship of 80-year-old Kitchener-Waterloo resident Helmut Oberlander, an ethnic German from Ukraine, which was removed by a Governor in Council (cabinet) decision in 2001 because there was no evidence that Oberlander committed any war crime.

At that same time the court told the government that it has to adhere to its own guidelines in pursuing these cases - namely that there had to be evidence of individual crimes.

"The Governor in Council is not, of course, deciding as a matter of law whether a person is a war criminal, but it cannot apply the war criminals policy to a person unless it first satisfies itself, to use the very words of the policy, that 'there is evidence of direct involvement in or complicity of war crimes or crimes against humanity'," reads the ruling.

"The (Immigration) Minister's Report does refer to the 'no safe haven' policy but does not analyse why it is that Mr. Oberlander fits within the policy which, the Report fails to mention, applies only to suspected war criminals," the ruling adds.

"In face of the express finding by Mr. Justice MacKay that no evidence was presented about any personal involvement of Mr. Oberlander in war crimes, one would expect the Governor in Council to at least explain why, in its view, a policy which, by its very - and underlined - words applied only to suspected war criminals, applied to someone who served only as an interpreter in the German army. I note that neither the Minister in her report nor the reviewing Judge even refer to the fact that Mr. Oberlander had asserted that he had not joined the German army voluntarily and that Mr. Justice MacKay has not made a definite finding as to whether Mr. Oberlander had been conscripted or not.

Justice Décary allowed Oberlander's appeal of the revocation of his citizenship "with costs" and turned the matter back to the Governor in Council for a new determination.

"In practice, this Order means that the Minister of Citizenship and Immigration, should she decide to again seek the revocation of the citizenship of Mr. Oberlander, is expected to present the Governor in Council with a new Report which will address the concerns expressed by the Court in these reasons," he stated.

The government may appeal this decision to the Supreme Court of Canada. For that to happen they must first apply for leave to appeal, which the Supreme Court may deny.

When, on June 5, 2004, Ukrainian News asked Deputy Prime Minister Anne McLellan, who is responsible for the Canada Border Services Agency which has taken over immigration war crimes investigations, she replied: That's up to the minister of justice. That's entirely up to him. That's not up to me."

The Federal Appeal Court hearing was held because of the federal government's appeal of a Jan. 7 ruling by Justice Robert Reilly of the Ontario Superior Court which put deportation process against Oberlander on hold.

At a March 24, 2004, meeting of Parliament's Standing Committee on Citizenship and Immigration, Kitchener-Waterloo Liberal MP Andrew Telegdi stated that he asked the Minister of Justice (Irwin Cotler) and the Minister of Citizenship and Immigration (Judy Sgro) who made the decision to make an appeal.

"They said it wasn't them," Telegdi reported, according to transcripts of the meeting.

He then asked Michel Dorais, Deputy Minister, Department of Citizenship and Immigration, to "please tell me who in the department made that decision?"

At that point committee Chair Sarkis Assadourian intervened, telling Dorais "if there's any relation in the question to the main estimates, please go ahead and answer."

Dorais relied: "There's no relation to the main estimates, other than the fact that the war crime program is now the responsibility of the Canada Border Services Agency, not the department."

In his ruling Justice Reilly also stated that McLellan, who was justice minister at that time and Elinor Caplan, who was then minister of citizenship and immigration, were in a conflict of interest.

"The material presented to me on the 'threshold' issue with respect to the application permits the inference that the Minister of Citizenship and Immigration, and perhaps the Attorney General of Canada as well, sat as members of the Governor in Council in deciding whether to revoke Mr. Oberlander's citizenship. If these Ministers did indeed 'preside' as part of the tribunal, as members of the Governor in Council deciding the issue, then they were involved in a clear conflict of interest. The court to date has been given no assurances either way," stated Justice Reilly.

When asked by Ukrainian News whether she sat in on the meeting that revoked Oberlander's citizenship, McLellan replied: "I cannot reveal cabinet confidences."

When the case of Wasyl Odynsky came up for cabinet decision a year later, Ukrainian News obtained a list of the members of that committee. Both the justice minister at that time, Martin Cauchon, and then Citizenship Minister Denis Coderre were members of that committee.

Eric Hafemann, lawyer for Oberlander and the most recent respondents in D & D cases, Jura Skomatchuk of St. Catherines and Edmontonian Josef Furman, says the ruling has implications for other D & D cases including his two new clients and Odynsky.

"The Federal Court of Appeal has made it very clear that the cabinet, in stripping someone of their citizenship must give reason.," he told Ukrainian News.

"And that is very important because they then have to justify, based upon the evidence, why someone's citizenship is going to be taken away."

He added: "If you don't have to give reasons, you can get dishonest politicians just sneaking it in through the back door, like Elinor Caplan did. And that's what happened to poor Mr. Oberlander."

In neither of the three other cases cited have any charges of individual crimes been brought forward in the Statements of Claim against the individuals.

In the case of Odynsky, Justice Andrew MacKay found that his service as a Trawniki camp guard was involuntary and that there was no evidence that he participated in the mistreatment of any prisoner anywhere at any time.

Hafemann said that during Oberlander's hearing before Justice McKay, federal lawyers tried to bring in statements obtained by the KGB.

But one of the people involved, a Mr. Sydorenko, said he was taken to a basement by the KGB, beaten up, then presented with a prepared statement to sign. That evidence was thrown out of court.

"To introduce statements obtained by the KGB, where there was a history of beatings and torture and killing is just nonsense in a Canadian court," said Hafemann.

"And the judge didn't want to have any part of it."

Hafemann said he is convinced the government won't get leave to appeal this decision from the Supreme Court "but even if they did, it would be of no concern to me. We will be successful with the ultimate outcome because this is a solid decision by the court." Nevertheless, he said he would prefer this matter be terminated for the sake of his client who is 80 years old.

Telegdi called the appeals court decision "great news for naturalized Canadians."

"The original decision of Governor in Council (Cabinet) to revoke his citizenship was set aside by the Court that found that that decision was flawed on two counts.

"First, cabinet didn't show it considered Oberlander's personal circumstances, including '50 years of irreproachable life in Canada,' before taking his citizenship away," he said.

"The judges also ruled the revocation was flawed because cabinet didn't explain how Oberlander fit a government policy to deport people only if there is evidence of participation or complicity in Second World War crimes, including membership in organizations 'with a single, brutal purpose, e.g. a death squad.' There is no evidence that Oberlander had direct involvement or complicity in the commission of war crimes.

"This decision opens the door for us to redouble our effort to convince the government to change the citizenship revocation process in the Citizenship Act to allow for due process of law including the right of appeal. This will provide real justice and equality of citizenship for naturalized Canadians."

Eugene Harasymiw, President of the Edmonton Branch of the Alberta Ukrainian Self-reliance League and a long-time opponent of the D & D process, told Ukrainian News: "There is little doubt that the unanimous decision of the Federal Court of Appeal has dealt a crushing blow to the present government's politically-driven 'war crimes' program.

"What is astounding is that, although intellectually challenged Ministers of Citizenship and Immigration like Elinor Caplan (blinded as she was by the political agenda of the ethnic constituency she represented) could not be expected to understand the niceties of due process, the same cannot be said about Ministers of Justice like Anne McLellan and Irwin Cotler. Both of these individuals knew full well that the denaturalization and deportation process was flawed in fundamental ways, to the detriment of the accused, their families and the Ukrainian community, as was pointed out in the Oberlander appeal decision. That they chose to ignore those flaws and actively pursued their political goals points clearly to their duplicity, hypocrisy and perfidy, for which they will have to face the electorate. They had full opportunity to correct the process; they chose not to do so.

"They have no excuse."

Meanwhile, Keith Landy, national president of the Canadian Jewish Congress, called the Federal Court of Appeal decision "an insult to those who perished in the Holocaust and those who survived."

Reacting to Landy's statement, Hafemann said: "Mr. Landy and others really are engaging in hatemongering against these old gentlemen. And it truly is hatemongering. They are always complaining about hate crimes. Well they are hatemongers against innocent senior citizens. There is no evidence implicating Mr. Oberlander, Mr. Odynsky, Mr. Baumgartner (another respondent)… there's not a scrap of evidence found in these hearings."

"It isn't in the interest of the Jewish people for people to talk like that," he added.